Obama Surveillance Suit by Rand Paul Spurs Lawyer Fight

U.S. Senator Rand Paul, a Republican from Kentucky, announced today that he had filed his complaint over U.S. electronic surveillance in Washington federal court. Photographer: Pete Marovich/Bloomberg

Feb. 13 (Bloomberg) -- A legal challenge to the National
Security Agency’s telephone data surveillance program by Senator
Rand Paul was followed by a dispute between two high-profile
Republican lawyers over authorship of the complaint.

Constitutional lawyer Bruce Fein wrote the complaint and
was replaced as its author by Kenneth Cuccinelli, the former
attorney general of Virginia, according to Fein’s spokeswoman.

The document “was completely misrepresented as
Cuccinelli’s. Bruce wrote the entire thing,” said Mattie Fein,
Bruce Fein’s representative and ex-wife.

Further, Mattie Fein said, “Bruce hasn’t been paid yet.”

Paul’s suit, which names President Barack Obama, Director
of National Intelligence James Clapper and other top security
officials, alleges that the government is collecting phone data
about U.S. citizens “without any belief by defendants at the
time of collection or retention or searches that any of the
information is connected with international terrorism or an
international terrorist organization,” in violation of the U.S.
Constitution’s Fourth Amendment prohibition of unreasonable
searches.

Bruce Fein represented Lon Snowden, the father of Edward
Snowden, the NSA contractor who revealed the surveillance
program involving the collection of the phone records of
millions of Americans, at the heart of the lawsuit.

Snowden Lawyer

Fein was the elder Snowden’s attorney from June until
September, Mattie Fein said.

Eleanor May, a spokeswoman for Paul’s senate office,
declined to comment because she said he filed the case as a
private citizen, not in an official capacity.

Michael Lewis, a second lawyer listed on the complaint
declined to comment and referred a caller to Cuccinelli’s office
in Fairfax, Virginia. Phone and e-mail messages seeking comment
from Cuccinelli weren’t immediately responded to yesterday.

“Allegations that Bruce Fein was not paid are false, he
was paid,” Doug Stafford, executive director of RandPAC, Paul’s
political action committee, said in an e-mailed statement.
“Additionally, Bruce was one of several attorneys involved in
this lawsuit.”

Paul, a Kentucky Republican, announced the filing of the
suit at a briefing yesterday outside U.S. District Court in
Washington.

Fein, Paul

Fein had been working on the complaint with Paul for weeks
and “had no idea that it was going to be filed” yesterday,
according to Mattie Fein.

The controversy highlights a feud within the Republican
Party between Tea Party favorites, like Paul and Cuccinelli, and
other factions.

Mattie Fein described Bruce Fein, who was associate deputy
attorney general and general counsel to the Federal
Communications Commission under President Ronald Reagan, as an
independent Republican. “You can’t really call him a Tea Party
person,” she said.

Caitlin Hayden, a spokeswoman for the National Security
Council, referred a request for comment on the lawsuit to the
Justice Department. The council, a White House group, consists
of administration advisers, mostly from the Cabinet and the
military.

Found Legal

“We believe the program as it exists is lawful,” Hayden
said in an e-mail, addressing the data collection generally.
“It has been found to be lawful by multiple courts. And it
receives oversight from all three branches of government.”

“We remain confident that the Section 215 telephone
metadata program is legal, as at least 15 judges have previously
found,” Peter Carr, a Justice Department spokesman, said in an
e-mailed statement. White House spokesman Jay Carney declined to
comment on the specific litigation. He repeated Obama’s position
that the program is lawful and has been upheld by courts.

Paul’s suit follows rulings in two other challenges to the
NSA data collection program.

One, by a federal judge in New York on Dec. 27, concluded
that the program is legal. That ruling came less than two weeks
after a federal court in Washington said it may be illegal. The
two judges came to opposite conclusions about a landmark 1979
ruling on telephone data in the pre-Internet age.

A divided U.S. privacy-policy board last month concluded
the NSA program is illegal and should be stopped.

‘Minimal’ Usefulness

The five-member Privacy and Civil Liberties Oversight
Board, created by Congress under post-Sept. 11 anti-terrorism
laws, said in a 238-page report that the program to collect and
store the records has provided only “minimal” help in
thwarting terrorist attacks.

The NSA receives phone records from U.S. telecommunications
companies and stores them in a database that can be queried to
determine who is in contact with suspected terrorist
organizations.

The surveillance was authorized by President George W. Bush
after the Sept. 11, 2001, terrorist attacks,. It has been
defended as “critically important” to national security,
according to records declassified this month by Clapper.

In the two court rulings, U.S. District Judge William H.
Pauley III in Manhattan granted a government motion to dismiss a
suit filed by groups led by the American Civil Liberties Union.

Injunction Suspended

In Washington, Judge Richard Leon barred collection of
metadata from the Verizon Wireless accounts of the two
plaintiffs. Leon suspended the injunction for a government
appeal.

The ACLU appealed Pauley’s ruling to the federal Court of
Appeals in New York. If appeals courts uphold their respective
lower courts, creating a split, the Supreme Court is more likely
to take the case.

The information at issue in all three cases involves
“metadata,” which includes the numbers used to make and
receive calls and their duration.

It doesn’t include information about the content of the
communications or the names, addresses or financial information
of parties, according to government filings in the Washington
case.